Revised or New Test Procedures: What CAS Requires / Richard H. McLaren. – (International Sports Law Journal (2006) 3/4 : p. 36-46)

0.) Introduction
1.) Nandrolone
1a.) The Early CAS Jurisprudence
1a-i.) The Exercise Induced Challenge
1a-ii.) Calculation Challenges
1b.) Ingestion Without Intention Challenges
1b-i.) Contaminated Supplements
1b-ii.) Other Claims of Ingestion
1b-iii.) Unexplained Challenges
1c.) The Challenge of Changing Scientific Knowledge
1d.) Summary
2.) Erythropoietin
2a.) The Original Direct Urine Test
2b.) The Refinement of the BAP Test Interpretation Criteria
2c.) The Elimination of the BAP Criterion
2d.) The Most Recent Version of the EPO Test Procedure
2e.) The Active and Effort Urine Refinement to the Test Procedure
2f.) The Test for Darbepotien (Aranesp)
3.) Blood Transfusion: A New Test Procedure
4.) Conclusion

Revisions to the testing procedures for nandrolone and erythropoietin, - two prohibited substances - as well as the introduction of a new testing procedure for blood doping by transfusion, illustrate the challenges to the legal mettle of the Court of Arbitration for Sport (CAS) brought about by greater scientific understanding.
By virtue of studying testing developments we can explore the following theme: Can progress in testing continue in light of the CAS requirements? The same proposition and theme is also addressed by examining what was required to accept the introduction of flow cytometry as an analytical technique for detection of the prohibited method of homologous blood transfusion in the case of Tyler Hamilton.
In light of these developments, the challenge for CAS will be both in accommodating revisions and in permitting the introduction of new testing procedures to deal with new situations. In so doing, the
cost and process of legal acceptance for new procedures cannot continue to be as expensive. The accommodation of change and innovation must be realized while ensuring the protection of athlete’s rights.

Inhaled beta2 agonists and performance in competitive athletes / W. Kindermann, T Meyer. - (British Journal of Sports Medicine 40 (2006) Supplement 1 (July) ; p. 43-47)

• PMID: 16799103
• PMCID: PMC2657501
• DOI: 10.1136/bjsm.2006.027748

Abstract

Objectives: To provide an overview of the current literature on the use of inhaled beta2 agonists in non-asthmatic competitive athletes, and to assess the performance enhancing effect of inhaled beta2 agonists.

Methods: Review of the literature.

Results: Twenty randomised, placebo controlled studies (19 double blind, one single blind) were located. Only three studies reported a performance enhancing effect of inhaled beta2 agonists. However, methodological shortcomings were most likely responsible for these findings (for example, non-elite athletes, inconsistent results in different tests, subgroups with above-average responsiveness).

Conclusions: This review reveals that there is no ergogenic potential of inhaled beta2 agonists in non-asthmatic athletes. In view of the epidemiology of asthma in athletes and the considerable workload involved in provision of therapeutic use exemptions the inclusion of inhaled beta2 agonists on the list of prohibited substances should be reconsidered.

Arbitrage TAS 2005/A/958 R. c. Union des Associations Européennes de Football (UEFA), sentence du 29 juin 2006

• Football
• Doping (Cocaine)
• Competence of CAS
• Applicable law
• Valid evidence
• Minimum level of detection required from laboratories
• Proportionality of the sanction

On 7 July 2005 the Union of European Football Associations (UEFA) Control and Disciplinary Body decided to suspend the minor Dutch football player after his A and B samples tested positive for Cocaine in a low concentration. The Athlete appealed and before the UEFA Appeals Body the Athlete introduced his hair test which showed no presence of cocaine.

The UEFA Appeals Body considered the Athlete’s hair test invalid and based on extenuating circumstances it decided on 30 August 2005 to impose a reduced sanction of 8 months on the Athlete.

Hereafter in September 2005 the Athlete appealed the UEFA Appeals Body decision with the Court of Arbitration for Sport (CAS).

The Athlete argued that the concentration of Cocaine found in his samples was too low to be scientifically verifiable while another football player of the opposing team also had the same test results. The Athlete raised the hypothesis that his positive test was the result of contamination throught inadvertent skin contact.

At the request of the CAS Panel the World Anti-Doping Agency (WADA) responded in this matter. Here WADA deemed the hypothesis of a contamination by simple accidental cutaneous contact for a urinary concentration of benzoylecgonine of 10 ng/ml not to be credible.

Based on the evidence in this case the Panel finds that the Athlete failed to demonstrate grounds regarding the validity of the Paris Lab test results and the concentrations found.

The Panel also rejects the Athlete’s hair test because it was not analysed in an accredited laboratory, considered less relevant than an urine test and inadmissible under the Rules.

Futher the Athlete could not show circumstances where possible passive contamination occurred. Considering the mitigating circumstances in this case the Panel holds that there are grounds to reduce the imposed sanction by 2 months.

Therefore the Court of Arbitration for Sport decides on 29 June 2006:

1.) The Athlete’s appeal is admissible and partially upheld;

2.) To reform the UEFA Appeals body decision of 30 August 2005 and to reduce the Athlete’s period of ineligibility to 6 months;

3.) The period of ineligibility of 5 months an 22 days already served by the Athlete shall be credited against the imposed period of ineligibility.

facts
Antony Dupuis (player) was reported for a violation of the Anti-Doping Rules(ADR) as a result of a positive doping test on May 2, 2006, Tunis Challanger Event in Tunis, Tunisia. His sample showed the presence of the prohibited substance salbutamol. The player admits the doping offense but claims no fault or negligence.

history
The player suffered from asthma and allergic symptoms since childhood. He uses an inhalator with ventoline which contains salbutamol, for which he doesn't have an abbreviated therapeutic use exemption (ATUE) or therapeutic use exemption (TUE). However the player's doctor signed a certificate but the date is unclear (2005 or 2006). The player claims not to have know he needed a TUE.

submissions ITF
The ITF strongly disputed the proposition of the player that he was without fault but did not assert that the player intended to enhance his sporting performance.

Decision
The tribunal:
(1) confirms the commission of the doping offense specified in the notice of charge set out in the ITF’s letter to the player dated 1 August 2006: namely that a prohibited substance, salbutamol, has been found to be present in the urine specimen that the player provided on 2 May 2006 at the Tunis Challenger Event in Tunis, Tunisia;
(2) orders that the player’s individual result must be disqualified in respect of the Tunis Challenger Event, and in consequence rules that the one ranking point and the prize money of US $1,300 obtained by the player through his participation in that competition, must be forfeited;
(3) orders, further, that the player’s individual results in competitions subsequent to the Tunis Challenger Event shall be disqualified and all prize money and ranking points in respect of those competitions forfeited;
(4) finds that the player has succeeded in establishing on the balance of probabilities that his use of salbutamol leading to the positive test result was not intended to enhance sport performance;
(5) declares the player ineligible for a period of 2½ months, running from 27 August 2006 until midnight London time on 10 November 2006, from participating in any capacity in any event or activity (other than authorized anti-doping education or rehabilitation programs) authorized by the ITF or any national or regional entity which is a member of or is recognized by the ITF as the entity governing the sport of tennis in that nation or region.

TAS 2006/O/1111 Amaury Sport Organisation (ASO) c/Active Bay SL

CAS 2006/O/1111 ASO vs Active Bay SL

Amaury Sport Organisation (ASO) is organiser of the Tour de France. Active Bay SL is owner of the UCI Pro Tour license and owner of the Astana-Würth team.

In June 2006 ASO withdrew is invitation for participation into the Tour de France addressed to the Astana-Würth team because of their involvement in doping. The reason for ASO's action were the results of Operation Puerto in Spain were several persons were arrested for supplying doping products.

Following deliberations between ASO and Active Bay ASO filed a request for arbitration in June 2006 with the Court of Arbitration for Sport (CAS).

ASO requested the Panel to uphold its decision to refuse the participation of the Astana-Würth team in the 2006 Tour de France while Active Bay requested the Panel to confirm the participation of the cycling team.

Considering the large publicity about Operation Puerto the Panel establishes that after its own investigations the UCI License Commission had decided in June 2006 that for the time being the Astana-Würth team could continue its activities.

As a result the Panel concludes that for the moment there are insufficient grounds that justifies the exclusion of the cycling team.

Therefore the Court of Arbitration for Sport (CAS) decides on 29 June 2006 to dismiss ASO's request to exclude the Astana-Würth team from the 2006 Tour de France.

CAS 2006/A/1190 World Anti-Doping Agency (WADA) v. Pakistan Cricket Board (PCB) & Shoaib Akhtar & Muhammed Asif

Related case:

PCB 2006 Shoaib Akhtar & Muhammad Asif vs PCB - Appeal
December 5, 2006

• Cricket
• Doping
• CAS lack of jurisdiction

In order for the CAS to have jurisdiction to rule on an appeal, Article R47 of the CAS Code requires that a direct reference to CAS be contained in the statutes or regulations of the body whose decision is being appealed, or that a specific agreement between the parties allow the CAS to rule on the merits of a particular dispute. In the absence of such elements, the CAS does not have jurisdiction.

In October 2006 the Pakistan Cricket Board (PCB) has reported an anti-doping rule violation against the cricket players Shoaib Akhtar and Muhammed Asif after their samples tested positive for the prohibited substance 19-norandrosteron (Nandrolone).

Consequently on 1 November 2006 the PCB Anti-Doping Commission decided to impose a 2 year period of ineligibility on the Athlete Akhtar and a 1 year period of ineligibility on the Athlete Asif.

Both Athlete’s appealed and on 5 december 2006 the PCB Anti-Doping Appeals Committee decided to set aside the decision of 1 November 2006 and to annul the imposed sanction.

In this matter the Appeals Committee deemed that the Athletes had “successfully established that they held an honest and reasonable belief that the supplement ingested by them did not contain any prohibited substances”. The Athletes had therefore “met the test of ‘exceptional circumstances’ as laid down under clause 4.5 of the PCB Anti Doping Regulations.”

Hereafter in December 2006 the World Anti-Doping Agency (WADA) appealed the decision of the PCB Appeals Committee with the Court of Arbitration for Sport (CAS).

The PCB disputed WADA's appeal and argued that CAS had no jurisdiction in this case. WADA contended that the fact that the PCB Regulations provide for an appeal right to an organ of the PCB does not prevent WADA from appealing to CAS. WADA finds that it is entitled to appeal against “final” national level decisions of sports federations.

Following assessment of the case the Panel concludes:

1.) In order for CAS to have jurisdiction to rule on an appeal, Article R47 of the CAS Code requires that a direct reference to CAS be contained in the statutes or regulations of the body whose decision is being appealed.

2.) The PCB Regulations do not provide for a right of appeal to CAS.

3.) The ICC Code does not provide for a right of appeal to CAS of decisions of the PCB Appeals Committee.

4.) The ICC Code contains no provision which obliges the PCB to allow a right of appeal of its decisions to CAS.

5.) If the PCB were subject to such a mandatory provision, no right of appeal to CAS would exist until the PCB amended its statutes or regulations to incorporate such a right of appeal.

6.) There is no specific agreement between the parties to allow CAS to rule on the merits of this particular dispute.

7.) CAS therefore does not have jurisdiction to rule on the appeal filed by WADA in the present arbitral proceedings.

The Panel reaches this conclusion with some considerable regret. The fight against doping will be severely hampered if international federations, such as the ICC, and national governing bodies, such as the PCB, do not ensure that their anti-doping rules are able to avoid unsatisfactory decisions as the majority decision of the PCB Appeals Committee in this case.

Therefore the Court of Arbitration for Sport decides on 28 June 2007:

1.) The Court of Arbitration for Sport has no jurisdiction to decide the present dispute between the World Anti-Doping Agency and the Pakistan Cricket Board, Mr Soaib Akhtar and Mr Muhammed Asif.

2.) The appeal filed by the World Anti-Doping Agency on 21 December 2006 is inadmissible.

3.) The arbitration procedure CAS 2006/A/1190 shall be removed from the CAS roll.

CAS 2005/A/989 IAAF vs FFA & Jamel Ahrass

TAS 2005/A/989 IAAF c/Fédération Française d'Athlétisme (FFA) & Jamel Ahrass

On 28 September 2005 the French Athletics Federation (FFA) decided to impose a 1 year period of ineligiblility on the Athlete Jamel Ahrass, with 6 months as suspended sanction, after his A and B samples tested positive for the prohibited substance 19-norandrosterone related to contamination of his supplements.

Hereafter in December 2005 the International Association of Athletics Federations (IAAF) appealed the FFA decision of 28 September 2005 with the Court of Arbitation for Sport (CAS).
The IAAF argued that the FFA decision was not in accordance with the IAAF Rules and requested the Panel to impose a minimum 2 year period of inelgibilility on the Athlete.

The Panel finds that the FFA was not entitled to ignore the IAAF Anti-Doping Rules in this case and had wrongly considered that a low concentraton of the prohibited substance was found in the Athletes samples result from the non intentional of use contaminated supplements as ground for a reduced sanction.

Therefore the Court of Arbitration for sport decides to impose a 2 year period of ineligibility on the Athlete starting on 28 September 2005.

Related case:
ANAD Comitet Sancțiune 2006_09 ANAD vs Claudiu Stefan Grama
April 28, 2006

In 28 April 2006 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, imposed a 2 year period of ineligibility on the minor Athlete Claudiu Stefan Gram after his sample tested positive for the prohibited substance 19-norandorsterone, metabolite of nandrolone.

Hereafter in May 2006 the Athlete appealed the decision of the ANAD Sanction Committee with the ANAD Appeal Commission. The Athlete argued that he used prescribed medication due to a diagnosed eye inflammation of the cornea. The prescribed eye-drops medication contained the prohibited substance nandrolone. Also the Athlete mentioned his medication on the Doping Control Form.

The ANAD Appeal Commission concludes that the detected concentration nandrolone was low and that the Athlete had no intention to enhance his sport performance. The Commission rules that his negligence is not significant in relation to anti-doping rule violation and decides on 27 june 2006 to reduce the imposed 2 year period of ineligibility to 1 year.

CAS 2004/A/748 Russian Olympic Committee (ROC) & Viatcheslav Ekimov v. International Olympic Committee (IOC), United States Olympic Committee (USOC) & Tyler Hamilton

• Cycling
• Characteristics features of a „decision‟
• No anti-doping rule violation
• Jurisdiction of the CAS
• Standing to appeal

1. When a letter contains a clear statement of the resolution of the disciplinary procedure and when that statement has the additional effect of resolving the matter in respect of all interested parties it can be considered as a decision. It seems also evident from the text of the letter that its author intended such communication to be a decision issued on behalf of the IOC. The letter is therefore a true “decision” which can be appealed under Art. R47 of the Code.

2. The decision taken by the IOC whereby it is stated that a rider had not committed an anti-doping rule violation because the B sample did not confirm the A sample is tantamount to stating that the IOC determined that no anti-doping rule violation had been committed. Therefore, the said decision falls under Art. 12.2 of the IOC Anti-Doping Rules which allows the CAS to rule on appeals against a „decision that no anti-doping rule violation was committed‟ and the CAS has jurisdiction to review it.

3. Art. 12.2.2 of the IOC Anti-Doping Rules, corresponding to Art. 13.2.3 of the WADA Code, provides that only the following parties have the right to appeal to the CAS: “(a) the Athlete or other Person who is the subject of the decision being appealed; (b) the IOC; (c) the relevant International Federation and any other Anti-Doping Organisation under whose rules a sanction could have been imposed; and (d) WADA”. Neither a competitor (of the athlete subject to an anti-doping decision) nor his National Olympic Committee are among the individuals or organisations listed therein. This interpretation is confirmed by the Comment on the WADA Code – particularly relevant in light of Art. 16.5 of the IOC Anti-Doping Rules – which unambiguously states that such list of persons or organizations having standing to appeal “does not include Athletes, or their federations, who might benefit from having another competitor disqualified”. An application submitted to the CAS by a party having standing to appeal long after the time limit for the appeal had expired cannot be considered.

Mr. Tyler Hamilton is an American professional Athlete competing in the cycling Men's Individual Time Trial event and the Men's Road Race at the Athens 2004 Olympic Games.

Mr Viatcheslav Ekimov is a Russian professional Athlete competing at the Athens 2004 Olympic Games.

In August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his sample tested positive for blood doping. However the IOC Disciplinary Commission concluded on 23 September 2004 that no anti-doping rule violation was committed because the Athlete's B sample did not confirm the A sample.

Hereafter in October 2004 the Russian Olympic Committee (ROC) and the Athlete Viatcheslav Ekimov appealed the IOC Decision of 23 September 20014 with the Court of Arbitration for Sport (CAS).

The ROC and the Athlete requested the Panel to set aside the IOC decision and for the disqualification of the Athlete, including forfeiture of any medals, points and prizes won.
The Appellants contended that the new adverse analytical finding in respect of Mr Hamilton and the outcome of the related case would be relevant for the present procedure.

The Panel holds that the IOC Decision of 23 September 2004 falls under Art. 12.2 of the IOC Anti-Doping Rules and, thus, the CAS has jurisdiction to review it. However, a tribunal may have jurisdiction to decide a dispute, but it can only exercise that jurisdiction if the parties in front of it have standing to ask it to make the decision. Accordingly, the Panel must decide whether the Appellants are properly before it, i.e. whether they have locus standi to put the matter before the CAS under the IOC Anti-Doping Rules.

The Panel finds that both Appellants lack standing to appeal under Art. 12.2.2 of the IOC Anti-Doping Rules. As a result, the Panel may not entertain this appeal and must decline to adjudicate the case upon its merits.

On 27 June 2006 the Court of Arbitration for Sport decides:

1.) Mr Viatcheslav Ekimov and the Russian Olympic Committee have no standing to appeal against the decision issued on 23 September 2004 by the International Olympic Committee.

2.) The appeal filed by Mr Viatcheslav Ekimov and the Russian Olympic Committee on 14 October 2004 against the decision issued on 23 September 2004 by the International Olympic Committee is dismissed.

(…)

In March 2006 the Royal Netherlands Strength Sport Fitness Federation (KNKF) reported an anti-doping rule violation against the Person after his sample tested positive for the prohibited substance cocaine. After notification the Person filed a statement in his defence and he was heard for the ISR KNKF Disciplinary Committee.

The Person argued that there were departures of the ISTI as the Doping Control Officer didn't identify himself and there was no supervision at the Doping Control. Also the Person claimed that an ammonia tank of another trainer he had used could have contained the prohibtied substance.

The Disciplinary Committee finds that the DCO has indentified himself and the Person signed the papers confirming that the sample collection procedure was performed correctly.
The Person's use of a ammonia tank conflicts with the Rules as the tank could have contained prohibited substances and the Person is responsible that no prohibited substances entered his system.

The ISR KNKF Disciplinary Committee finds that the anti-doping violation has been established and decides on 26 June 2016 to impose a 2 year period of ineligibility on the Person.

Fees and expenses for this committee shall be borne by the Person.